Two Sides Of The Same Coin: The Connection Between Legal And Illegal Immigration

Are massive legal immigration and massive illegal
immigration related? If so, how? Many in policy circles hold a view of "Legal
immigration, good; illegal immigration, bad."1 The
logical extensions of such a simplistic perspective are to assume that the
overall level of legal immigration does not matter and to underestimate any
correlation to illegal immigration. But the facts show a distinct connection
exists.

In brief, this report finds:

Legal and illegal
immigration are inextricably related. As legal immigration levels have risen
markedly since 1965, illegal immigration has increased with it.

The share of the
foreign-born population who are illegal aliens has risen steadily. Illegal
aliens made up 21 percent of the foreign-born in 1980, 25 percent in 2000, and
28 percent in 2005.

Mexico is the primary source country of
both legal and illegal immigrants. Mexico accounted for about 30 percent of
the foreign-born in 2000, and more than half of Mexicans residing in the
United States in 2000 were illegal aliens.

The level of illegal immigration
is severely masked by several amnesties that legalized millions of unlawfully
resident aliens. The largest amnesty was the 1986 Immigration Reform and
Control Act, which legalized 3 million aliens.

Amnestied aliens to
date have been fully eligible to sponsor additional immigrants. This has
contributed to the ranks of immigrants, both legal and illegal (and often
both).

Many aliens who receive a
permanent resident visa each year have spent years living in the United States
illegally.

"Anchor babies" and "chain
migration" provide opportunities for many aliens to plant roots in the United
States. Those aliens might not otherwise have done so.

An overly generous legal
immigration preference system, whose bias is toward relatives and against
ability, sets unrealistic expectations. Many aliens who technically qualify
to immigrate face the reality of backlogs and waiting lists.

Amnesties, technical
qualification for a visa, chain migration, and vast opportunities to come to
the United States (particularly via tourist visa, the most abused visa by
eventual immigrants, according to the New Immigrant Survey) all foster an
"entitlement mentality" among many foreigners.

This report examines the links between legal and
illegal immigration. First, it sets the historical context of American
immigration. It considers the data on legal immigration, illegal immigration,
including countries of origin, and the ways present immigration policy and
processes enable and encourage lawbreaking. Finally, policy recommendations are
offered.

Immigration in American History

It has been said that legal and illegal immigration are two sides of the same
coin. That is, when legal immigration levels have been high, illegal
immigration levels have also tended to be high. Similarly, when legal
immigration is lower, there is less illegal immigration.

What could explain this phenomenon? A short review of
American immigration history gives much-needed perspective. Immigration to the
United States has ebbed and flowed. In general, from 1776 to 1965, this "nation
of immigrants" averaged 230,000 immigrants per year. 2
By the 1990s, immigration averaged about a million each year, plus illegal
immigrants.

Historical Immigration Levels

Table 1 shows average immigration levels from the colonial era beginning in 1607
when Jamestown, Virginia, was settled until 1965. The American immigration
experience has seen much lower levels of immigrant arrivals compared with
today's aberration.

Noting the ebb and flow of immigration within American
historic periods, expert Carl Hampe said "average annual immigration rates were
well below 400,000 during 1850-1880, an average of 520,000 legal immigrants
entered each year between 1880-1890, but . . . fell below 450,000 from
1890-1899."3 He continued:

During the peak "Ellis
Island" period of U.S. immigration, 1902-1914, 12.4 million immigrants entered
the country (over 900,000 per year). However, numerous "ebb periods" emerged
after 1914 (particularly during the Depression, when only 528,000 persons
entered the U.S. during the entire decade
of 1931-1940). From 1925 to 1976, legal immigration did not exceed 500,000 in
any one year.

One thing is for certain, the 1902-1914 period
is an historical aberration: 900,000 immigrants per year on average far
outstrips any other comparable 13-year slices of U.S. history.4(emphasis in original)

Average annual immigration levels following the high
period from 1880 to 1924, which included the "Great Wave," subsided greatly to
178,000 a year on average (see Table 1). But this level was still the
second-highest period of immigration up to that point.

Runaway Mass Immigration

Immigration expanded rapidly after 1965, in part because Congress shifted the
legal preference system to family relations and away from employment needs and
immigrant ability.5

The new scheme provided seven, up from the previous
four, preference categories. The new policy expanded family-based categories to
include relatives well beyond the initial immigrant, spouse, and minor
children. Nonquota immigrants came to include others beyond nuclear family
units, such as aged parents of U.S. citizens.6

The effect of the 1965 Immigration and Nationality Act
Amendments -- and exacerbated by subsequent legislation in 1980, 1986, and 1990
-- was to increase dramatically the number of immigrants and radically expand
the pool of potential immigrants.7Hampe explained,
"The Immigration Act of 1990 significantly expanded a legal immigration
system which the 1965 Amendments ensured would have a built-in growth
mechanism."8 (emphasis added)

The numbers of new immigrants continued to climb
after the new law went into effect in 1968. During the first few years the
United States averaged nearly 400,000 newcomers. By the end of the 1970s the
number had soared to 800,000. In the 1980s immigration, still theoretically
limited to 270,000 a year, averaged more than 700,000. During the decade the
nation absorbed 8.9 million legal immigrants and, by most estimates, at least 2
million illegal ones. In absolute numbers the 1980s saw more immigrants (legal
and illegal) than any other decade in U.S. history. By the early 1990s more
than 1 million new legal immigrants were arriving in the United States every
year, accounting for almost half of its population growth.9

Figure 1 shows the sharp rise in immigration by
decade. Legal immigration has jumped fourfold from 2,515,479 admissions between
1951 and 1960 to 9,095,417 between 1991 and 2000.

Another way to distinguish this escalation is by
comparing annual admissions. For example, the United States admitted 265,393
immigrants in 1960 and 296,697 in 1965, the year of immigration expansionism.
By 1969, 358,579 immigrants gained admission, 462,315 in 1977, 601,516 in 1987,
and 915,900 in 1996. Going from two and a half million immigrants admitted in a
decade to a million a year would overtax any immigration system; this rapid rise
has stressed the U.S. system tremendously.

. . . [R]elatives of U.S. residents had never been
given top preference in immigration law until the 1965 [A]ct. If the
legislation had extended the preference only to spouses and minor children,
there would have been little effect on the numbers. But it also gave preference
to adult sons and daughters, parents of adult immigrants, brothers and sisters.
If one member of a family could gain a foothold, he or she could begin a chain
of migration within an extended family, constantly jumping into new families
through in-laws and establishing new chains there.10

The inherent problems arising from "chain migration"
manifest themselves in relation to both legal and illegal immigration. The
illegal immigration aspect is discussed later. But on the legal side, millions
may claim permanent residency in the United States and even become U.S. citizens
on the sole basis of an extended family relation.

[B]ecause family reunification policy now permits
the creation of migration "chains" -- immigrants petitioning for their parents
and brothers and sisters, who may in turn petition for their children and other
relatives -- family immigration has become a form of entitlement that may crowd
out other types of immigration that would be equally or more beneficial to
American society. In addition, "chain migration" allows the demand for family
immigration to grow exponentially.11

How does chain migration work? One example adequately
demonstrates the process and shows the opportunities and temptations for illegal
immigration.

Under the new preference system, an engineering
student from India could come to the United States to study, find a job after
graduating, get labor certification, and become a legal resident alien. His new
status would then entitle him to bring over his wife, and six years later, after
being naturalized, his brothers and sisters. They in turn could begin the
process all over again by sponsoring their wives, husbands, children, and
siblings. Within a dozen years one immigrant entering as a skilled worker could
generate dozens of visas for distant relatives.12

Not only is a single immigrant responsible for a long
chain of numerous links, but also those chains of migrants help explain legal
immigration's exponential growth. The record for chain migration is reported to
be a petitioner who brought in 83 immigrants.13

Meaningless "Caps," Real Backlogs, and Waiting
Lists.Family-based preferences that give rise to chain
migration cause even more profound consequences because capitation levels are
not capped in fact. While family-based immigration is "capped" at 480,000
admissions a year, the nominal cap is "piercable." Piercing the cap happens due
to nonquota immigrant categories (spouses and minor children of U.S. citizens,
parents of U.S. citizens) outpacing the supposedly limited overall family
immigration amount. The cap is also "flexible," meaning unused employment-based
visas from one year are added to family-based preferences the next year or vice
versa. This flexibility depends on the level of demand for certain visas.14

Related to these features and to chain migration, as
well as to illegal immigration, are "oversubscription and large backlogs in the
family categories."15 The massive IRCA amnesty led
to tremendous demand for the numerically limited spouses and minor children of
lawful permanent resident visas. Even with the IRCA transition program to
accommodate excessive numbers of LPR spouses and minor children, 88,673 visas of
dependents were given in fiscal year 1994, the last year of the program.

And still 80,000 dependents of LPRs were applying for
admission each year. The U.S. Commission on Immigration Reform reported that
this group's waiting list was "high and rising annually. In January 1995, the
waiting list for spouses and minor children was 1,138,544, up 8.7 percent from
1994 when it was 1,047,496, which was up 9.2 percent from 1993, when the backlog
was 958,839."16 The wait time for LPR spouses and
minor children in the mid-1990s was longer than three years and rising fast.

The bipartisan commission reported that the "ongest
backlog exists in the brothers and sisters of [U.S. citizens] preference
category, where there are almost 1.6 million registrants . . . making up 45.5
percent of the total visa waiting list . . . ." This translated into waits of
"ten years for countries with favorable visa availability and even longer for
oversubscribed countries."17Adult siblings from
the Philippines, India, and Mexico accounted for the greatest number of
applicants. Filipinos in this category were waiting 17 years for a visa.

Married sons and daughters of U.S. citizens queued up
in a backlog of some 260,000 applicants. After the 1990 Immigration Act (which
caused most backlogs to multiply), most people in this category had four-year
waits. However, Filipinos, making up 56 percent of the backlog, faced
decades-long waits. Mexicans were on a wait list of 13 years.

For unmarried adult children of U.S. citizens,
Mexicans constantly have oversubscribed this category. But the Philippines
backlog meant nearly 10-year waits. Unmarried sons and daughters of LPRs have
met backlogs, "especially since IMMACT [of 1990]." The commission said the
waiting lists in this category were growing in the 1990s, and expected to see
18-year waits.18 "More than one-fifth of those in
the backlog are from Mexico, with additional significant demand from the
Dominican Republic and the Philippines."19

In other words, American immigration policy was set on
"automatic pilot" in 1965 and the engine shifted into high gear in subsequent
laws. In effect, foreigners are determining American immigration levels by
default -- by simply exploiting an overly generous, misprioritized immigration
system. As we shall see, this mass legal immigration has had tremendous adverse
implications in terms of illegal immigration.

Two Sides of the Same Coin

At the core of America's illegal immigration crisis is the fact that illegal
immigration is a function of legal immigration. As legal immigration has been
liberalized, illegal immigration has expanded alongside it.

In addition to volume, an important aspect to consider
is the predominant source countries of immigration. Figure 2 illustrates the
share of immigrants from 20 of the top sending countries over the decades of the
1960s through the 1990s. Mexico has come to dominate American immigration
unlike any other single nation. While a significant source country in the
1960s, Mexico did not then overshadow all other countries of origin as it has
come to increasingly in each subsequent decade.

Figure 2 also shows how the traditional source nations
retained a decent share of the immigrant flow during the 1960s, but that their
proportions have generally fallen in real terms in subsequent decades, as well
as relative to new source countries. This may be attributed in part to the
post-1965 preference system's bias toward family-based and especially extended
relatives' immigration. Yet another detail to bear in mind here is the increase
in immigrants occurring heavily from less developed countries, rather than from
developed nations.

By comparing Figure 2 with Table 2, one may see that
several of the rising source countries of legal immigration in the 1990s gained
firmer footholds in part because of amnesties, particularly the 1986 IRCA
amnesty. Most of the top 20 IRCA amnesty countries of origin, seen in Table 2,
sent even more immigrants in the following decade. Legalized aliens could turn
around and sponsor family members to immigrate.

Another picture of the relation between legal and
illegal immigration may be seen in Figure 3. While reliable estimates of
illegal immigration are harder to come by before the 1990s,20
this graph shows that, in general, as annual immigrant admissions grew over the
1980s and 1990s (with a spike by 1991 because of the effects of the 1986 IRCA
amnesty), illegal immigration has actually climbed along with legal immigration.

On paper, illegal immigration levels fell in 1991
alongside a jump in legal immigration due to IRCA amnesty legalizations.
However, Figure 3 shows that the IRCA amnesty did not reduce illegal
immigration, as experts and policymakers promised. Rather, the amnesty gave
hope to millions more would-be illegal entrants that the United States would
repeat itself and one day legalize them, too.

The overall illegal alien population is estimated at
between 2.5 million and 3.5 million in 1980, growing to 5 million by 1987.
About 3 million illegal aliens were legalized under IRCA. The remaining illegal
population stood at 2 million in 1988. Estimates say 3.5 million illegal aliens
lived here by 1990. Illegal residents numbered 3.9 million by October 1992 (a
figure undoubtedly in flux and masked by much immigration fraud and abuse in the
IRCA amnesty).

By October 1996, 5 million illegal aliens were
estimated to live in the United States -- in other words, the illegal population
had replenished itself in less than a decade (see Figure 4). The number of
illegal alien residents had doubled from 1990 to 2000, from 3.5 million to 7
million. By 2005, some 9.6 million to 9.8 million illegal aliens lived in the
United States -- more than triple the number of IRCA amnesty recipients, triple
the illegal alien population in 1980, and twice the level of illegal immigration
in 1996.21

Table 3 shows the estimated levels of illegal aliens
residing in the United States throughout the 1990s, as well as the annual growth
in the illegal population for that period. INS researchers noted that apparent
drops in annual growth of the illegal population during this decade are
attributable to policy changes, including the granting of temporary protected
status, or TPS, to certain illegal alien nationalities and amnesties directed at
certain groups.22

Figure 5 and Table 4 illustrate similar phenomena.
Notable are the countries listed in these graphics, compared to the
oversubscribed chain migration nations named in the previous section. Figure 5
indicates the proportion of the foreign-born population from certain countries
for 1990 and 2000. Further, it shows for those years the portion of a country's
immigrants who comprise the illegal population as a segment of the whole number
of immigrants from a country. For example, Mexicans, legal and illegal, far
outnumber immigrants from other nations. Mexicans who are unlawfully present
approached half of all Mexican immigrants in 1990 and exceeded half in 2000.

Also, Figure 5 shows that for the countries charted,
all of which are among the top 15 senders of illegal aliens, only El Salvador --
and that because of 200,000 Salvadorans being amnestied in the interim period --
saw a decrease in its illegal alien population from 1990 to 2000.

Table 4 gives the top 10 countries responsible for
America's immigrant population in 2000 as well as the top 10 illegal alien
senders. Half of the top 10 countries of birth also number among the top
senders of illegal aliens. Mexico is readily the heaviest exporter of its
populace, legally and unlawfully, to the United States. Table 4 also shows that
the five source countries of illegal aliens that are not among the top 10
overall immigration source countries are all in relative proximity to the United
States -- in Central America, the Caribbean, or South America. And of the 10
chief immigrant countries of birth, only Cuba and Vietnam are not among the 15
worst sources of illegal aliens. Cuba is somewhat of a special case, as the
United States has maintained special policies for Cubans fleeing the Castro
regime.

Crux of the Problem: Mexico

Mexico easily stands out as the worst cause of America's immigration problems.
Continual Mexican migration northward, both legally and illegally, may pose the
biggest threat to U.S. security and sovereignty.23
"This situation is unique for the United States and unique in the world. No
other First World country has a land border with a Third World country, much
less one of two thousand miles."24

Large-scale Mexican immigration began growing in the
1960s and "accelerated in the 1970s as the number of Mexicans in the U.S.
tripled between 1970 and 1980. The number doubled again by 1990 and again by
2000. In 2004, the [Census Bureau's] March CPS shows 10.6 million people born
in Mexico [and residing in America]. This figure represents more than a 13-fold
increase over the 1970 census."25 Mexicans
represent nearly a third of the foreign-born population; this is about three
times the proportion of the next three countries of origin (China, Philippines,
India) combined.26

Mexican illegal migration explains much of the growth
in illegal immigration overall. "Since the mid-1990s, the number of new
unauthorized migrants has equaled or exceeded the number of new legal
immigrants. For Mexico, 80-85 [percent] of new settlers in the U.S. are
unauthorized."27 Half of Mexicans living in
America are illegal aliens.28

The 1986 mass amnesty exacerbated the Mexican illegal
immigration problem. Of the 3 million legalized foreign lawbreakers, the INS
said 75 percent were Mexican. As previously mentioned, they became eligible to
sponsor family members to join them here (or at least to legalize their status),
naturalize, and sponsor even more relatives, this time distant relatives.
Proximity has made it easy for "mixed status" households to proliferate.29

And amnesty, especially of Mexicans, only sparked more
illegal immigration.

The 1986 Immigration Reform and Control Act (IRCA)
had the most sweeping impact on immigration policy since the repeal of national
origins quotas in 1965. In the next several years, immigrant admissions would
soar to new heights as the new permanent residents brought in their family
members. This created unanticipated problems, including long backlogs in the
queue for immigrant visas, skyrocketing costs for the provision of government
services in the areas where the immigrants and their families settled, and
sustained border control problems. It was clear that the implementation of
employer sanctions would be no quick fix. The magnet had not been
demagnetized. An exodus of emigrants from Central America continued through the
late 1980s, and this influx raised questions about the asylum system.
Applicants needed only to make a minimal showing that they faced a "well-founded
fear of persecution" in their homeland in order to be granted an asylum review.
By late in 1988, the INS office in Harlingen, Texas, was receiving 1,700
applications for asylum each week . . . .30

As mentioned, estimates using census data say there
were 3 million illegal aliens present in 1980, rising to 4 million in 1986.
The 3 million amnesty recipients were scarcely through the legalization process
when, by 1992, the illegal foreign-born population was back up to 3.9 million.
It doubled again by 2000 and now may exceed 10 million.31
Much of this increase may be attributed to Mexico.

Given that mass immigration, both legal and illegal,
predominately stems from Mexico (see Table 4) and that the IRCA amnesty only fed
the desire and opportunity for Mexicans to migrate northward (legally and
illegally), important findings from the New Immigrant Survey show the "two sides
of the same coin" nature of legal and illegal immigration.

Table 5 indicates that Mexico leads all other source
countries in two key routes to unlawful presence in the United States before
eventual legalization. Mexicans account for more than two of five illegal
border crossers. Mexicans also lead as visa abusers.

The New Immigrant Survey also found that, whereas
two-thirds of adult immigrants had spent time in the United States prior to
receiving a permanent resident visa (including about a third as illegal aliens),
84 percent of Mexican immigrants had previously been to the United States. "[A]
clear majority (57%) of Mexican immigrants have prior experience as illegal
border crossers and another 9% are visa abusers."32
That is, two-thirds of Mexican immigrants were once illegal aliens.

In short, Mexico's abutting the United States with a
2,000-mile border, coupled with lax American enforcement, wide economic
disparity, the Mexican government's de facto policy of driving its poorest
residents northward, and vast numbers of Mexican immigrants already here to
harbor illegal aliens and steer them to jobs all provide opportunity and motive
for immigration lawbreaking on a grand, systematic scale.

The Flip Side of the Coin

As we have seen, as legal immigration levels have skyrocketed to
near-unprecedented highs, illegal immigration has risen alongside it. The
result has been nearly four decades of constant, steeply increasing immigration
both lawful and unlawful. As Samuel Huntington put it, "Substantial illegal
entry into the United States is a post-1965 and Mexican phenomenon."33

The post-1965 mass immigration scheme has established
patterns and affected human behavior in response to present U.S. immigration
policies. Just as people respond to any changes in law, human beings (and often
their foreign governments) have adjusted accordingly to the possibilities of
immigrating to the United States.

In other words, American immigration policy has
directly influenced the choices foreigners have made and what they have come to
expect. Changes in tax law or economic policy, such as certain tax deductions
or tax credits, influence people's economic behavior; it is no different with
immigration policy.

By Any Means Possible. The incentive to
immigrate to the United States arises from opportunity, the experiences of
relatives or peers, and other forces. Liberal family-based immigration
preferences, along with myriad nonimmigrant visa classes from tourist to student
to business investor, provide ample immigration opportunity to many more
people. Whereas one might not otherwise have contemplated uprooting and moving
halfway around the globe before, the existence of opportunity affects one's
decisions.

Foreigners with access to immigration lawyers or human
smugglers or with a familial relation already in the United States can exploit
one of the licit or illicit opportunities to get to the United States.
Everything from becoming a "mail-order bride" in what amounts to a marriage of
convenience (if not an outright sham) to enrolling in one of the many scams
exploiting loopholes such as the "investor visa" program and filing bogus asylum
claims provides opportunity to immigrate.

As the costs of international travel and international
communication -- telephone, Internet -- have fallen, friends and relatives who
have already immigrated to the United States can more easily share tales of
their experiences in America. Or the evidence of immigrant relatives'
remittances to those who remain behind testify to the relatively higher earnings
paid by U.S. jobs.

The United States enjoys the world's highest standard
of living. "Poverty" by U.S. standards is a far better lot than real poverty as
it occurs in most of the world's countries, and those living in America below
the official "poverty line" often have living quarters and First World "creature
comforts" that those in other nations' middle classes lack.

The United States affords a stable political system, a
legal system based on the rule of law, broad individual liberty and economic
opportunity, a sound economy, and generous government welfare entitlements, in
addition to extremely generous private charity. America is relatively free of
public corruption and offers a safe, secure place to live. By comparison to
many places, would-be immigrants may view the United States as a land of vast
wealth where the streets are seemingly paved with 14-karat gold.

Even purely from an economic perspective, moving to
America has a lot of appeal. The average Mexican earns a twelfth of an
American's wages. There are 4.6 billion people around the world who make less
than the average Mexican. (Would-be immigrants often fail to take into account
the much higher cost of living in the United States that accompanies those
higher wages.) Therefore, the "pull" factor of more money entices many aliens.

Because one technically qualifies for an immigration
visa, yet the backlogs may be long, many aliens immigrate illegally. They wait
for their visa number to come up while living here illicitly. "Some do not wait
their turn, but instead immigrate illegally to the U.S., hoping (and in many
cases succeeding) to wait here until their visa number becomes available. Thus,
the unrealistic expectations created by the failure to set firm priorities in
the system of legal immigration causes further incentive for illegal
immigration."34 Such dishonesty and cheating on
aliens' part are functions of chain migration.

Determined alien lawbreakers have discovered ways to
exploit legal loopholes and "end-run" the system. Illegal immigration and
cheating quickly have become means to the end of permanent legal immigration.
For example,

. . . many potential immigrants came on tourist
visas and worked illegally. While living and working illegally, they could
obtain labor certification based on their employment and apply for immigrant
visas. Once a visa was approved, sometimes two or three years later, an
applicant could return to his home country for a day, pick up the visa, and
return as a legal resident entitled to hold any job available.35

Another characteristic of immigration that relates to
both the legal and illegal sides of the equation, as well as to the use of every
possible means of illegal immigration, is so-called "mixed families." This term
may refer to any of a combination of households in which some members are U.S.
citizens or legal residents and others are illegal aliens.

The lure of "birthright citizenship" plays into the
calculus of many foreigners willing to break American immigration law. A
misinterpretation of the Fourteenth Amendment to the U.S. Constitution by the
Supreme Court grants automatic U.S. citizenship on virtually everyone born on
American soil, including the children of illegal aliens. Immigration
authorities are highly unlikely to try to deport an illegal alien whose child is
an American citizen. Therefore, "birthright citizenship" provides illegal
aliens an "anchor baby" who provides relative assurance of permanent residence,
if not legal status.

An estimated one-tenth, or 380,000, of U.S. births in
2002 were to illegal aliens, based on Census data.36
"Mixed families," in which some members (usually children) are American citizens
and others are illegal immigrants or some other combination of legal and illegal
residents, present a host of challenges to the United States, including
determining eligibility for taxpayer-funded public assistance programs.37

One estimate puts the number of people in "mixed"
households in 2004 at 13.9 million, or 6.3 million households. Within these
"mixed" families, there are 3.1 million "anchor babies." Some four-fifths of
children of illegal aliens live in mixed households. Fifty-five percent of, or
2.6 million, children of illegal aliens reside in families where all the
children are American citizens.38

A variation of a mixed family is where certain family
members come ahead as illegal aliens and move in with a legally residing
relative. The New Immigrant Survey, which assessed the amount and type of
experience immigrants had had in the United States prior to becoming permanent
lawful residents, found 84 percent of illegal border crossers in the sample were
family-based immigrants. Nearly half of those entering without inspection who
later gained a green card were spouses and children of U.S. citizens, while 27
percent were spouses and children of lawful permanent residents. Almost half of
immediate family members of U.S. citizens in the New Immigrant Survey had
overstayed a visa.39

The New Immigrant Survey cast a disturbing light on
immigration realities. It illuminated a systematic pattern of lawlessness and
line jumping, even among so-called "egal" immigrants -- many were in fact
illegal aliens first.

Thus, patterns observed for illegal border crossers
and visa abusers again suggest that immediate family join their citizen or
resident alien relatives abroad while they await legalization themselves, living
in the United States as undocumented migrants until the time when they can
return to their country of origin to pick up their documents and re-enter the
country as "new" immigrants.40

The survey found immediate family immigrants who had
come first unlawfully typically made 2 to 4 trips illegally, living 5 to 8 years
in the United States as illegal aliens before legalization.41

One more indicator of the interconnection of illegal
and legal immigration is the increased rates of adjusting status within the
United States. The Department of Homeland Security's figures show a general
rise from 1990 to 2000 (with an exceptional spike in 1991 from the IRCA
amnesty). As Table 6 indicates, adjustments of status by illegal aliens not
having to leave the country went from 36,000 in 1990 to 152,000 in 1999.42

Another way in which legal and illegal immigration are
shown to be two sides of the same coin is with visa overstays. An estimated
one-third to half of illegal immigration occurs when someone enters the United
States on a valid temporary visa but stays on past the visa's expiration.43

While violating the terms of a visa by overstaying its
period is unlawful (8 U.S. Code Sec. 1227(a)(1)(C)), the statute presently does
not provide criminal penalties. Thus, visa overstayers enjoy a loophole in
their favor. While subject to removal, overstayers face little prospect of
actually being deported. By this route, many aliens commit fraud and abuse,
fully intending to use "temporary" lawful entry as a backdoor to permanent
residence.

The Entitlement Mentality.
All these factors create certain expectations among foreigners who otherwise
would be perfectly satisfied to remain in their home country for the rest of
their lives. With a distant family member now living in the United States,
sending home monthly remittance checks, whose family members live relatively
more lavishly, growing awareness of the "good-paying" American job his emigrant
relative has, and enticing tales of this new land, opportunity combines with
others' experiences and the decision becomes when and how, not if, to immigrate
to the United States.

Expectation to immigrate spreads throughout a society,
as more and more people do so. Expectation feeds a sense of entitlement.
People come to suppose they have some inherent right to impose themselves on
another, sovereign nation.

Well, I think it's clear that the current legal
immigration system, which recognizes not only the nuclear family of incoming
immigrants but as well [naturalized] U.S. citizens' more distant family
relations, creates a system in which expectations for immigration and growth in
at least visa demand is automatic, it's inherent. The demand growth becomes
exponential, because each time an additional distant family member comes in,
that person as well could have spouses, children, and the other distant family
relatives connected to that incoming immigrant, which as you can see, creates
sort of a geometrical growth pattern.44

The U.S. House of Representatives committee
report on H.R. 2202, the Immigration in the National Interest Act of 1995,
further explained this vexing phenomenon:

Such sustained, uninterrupted growth in immigration
[since 1965] is without precedent in American history. So is the underlying
rationale of many that immigration is a right, not a privilege. The entitlement theory, which seeks to fit immigration
policy to the demands of those who would like to immigrate to the United States, has made it increasingly difficult to
establish a policy that selects immigrants according to their ability to advance
our national interests.A central failure of the current system is the
admissions backlog for spouses and minor children of lawful permanent residents,
which now number 1.1 million. This means that nuclear family members can be
kept separated for years. Even larger backlogs exist in categories for adult,
"extended family" immigrants. These backlogs undermine the credibility of the
system by forcing people who are
technically eligible to immigrate to wait for years, sometimes decades,
before they can legally come to the
U.S. The existence of these categories thus creates expectations that cannot
possibly be met within the capacity of the current system. Those failed
expectations encourage many waiting in line to immigrate illegally to the U.S.45

The Jordan Commission concluded the "pro-family" way
to speed nuclear family reunification, which would also diminish the
"entitlement mentality," is to eliminate extended-relative categories. This
would significantly reduce the load on immigration agencies that are supposed to
screen visa applicants and speed processing time for nuclear family members,
without compromising the scrutiny required to protect national security and
other U.S. public interests, such as preventing fraud.

Chain Migration.
Related to the build-up of immigration expectations, an entitlement mentality,
and technical eligibility for a visa is chain migration. Chain migration of
extended family members and vast backlogs lead to impatience and illegality.
Though still keeping nuclear families of some permanent resident aliens apart
for years, distant family members may cut in line and await their turn for an
immigrant visa in the United States. The Jordan Commission recommended
eliminating the distant relative categories in part to reunite LPRs' nuclear
families more quickly, as well as acknowledgement that the national interest is
not served by the chain migration categories. The very fact chain migration is
an option, coupled with past mass amnesties and the ongoing proposals of mass
legalization by prominent policymakers, stimulates illegal immigration.

The availability of "chain migration" not only
distorts the selection criteria for legal immigrants, but may add additional
incentive for people to attempt illegal immigration to the U.S. There is
growing evidence that some families overseas pool their resources to pay the
smuggling fee for one family member to illegally enter the U.S., in the hope
that this family member will eventually gain legal status, and be able to
petition for other family members.46

The point is that no immigration system could ever
accommodate the unrealistic expectations of would-be immigrants. The numbers of
potential immigrants in sending countries are far too great, and the fact that
per capita income and quality of life differ so extremely between the United
States and most sending countries energizes a "pull factor" that is incredibly
strong. Thus, the U.S. immigration system presently holds out false promise of
technical eligibility to immigrate, particularly for extended family members.
But that eligibility, based completely on blood or marriage relations, produces
an entitlement mentality.

Relations-based immigration predominating the
preference system for allotting visas, plus the diminution of employment-based
immigration priorities and the de-emphasis of individual skills, education, and
ability, have caused the mass immigration plaguing the nation. As the 1996
House Judiciary Committee said, "The primary beneficiaries of family-sponsored
immigration are the families of recently-arrived immigrants, not of native-born
U.S. citizens." Further, "most immigrants are admitted solely on the basis of
their relationship to another immigrant."47

Therefore, little logic lies behind present U.S.
immigration policy. There is certainly little benefit to the national
interest. And, thus, the immigration system has become a beast that feeds
itself perpetually, but that for all its gorging cannot satisfy the perceived
"demand." In actuality, the immigration system exacerbates both unchecked legal
and uncontrolled illegal immigration.

The very existence of large legal immigration quotas,
exempting certain family-member classes from annual quotas, an overly generous
preference scheme that enables "chain migration," laxity in routine enforcement
of immigration laws, a record of mass amnesties to millions of illegal aliens,
constant talk by prominent politicians of yet more amnesties all combine to set
unrealistic expectations among foreigners. The "autopilot" aspect of current
U.S. immigration policy acts like an all-fronts marketing plan that "creates" a
"need" to immigrate to the United States. The result: sustained, mass
immigration, both legal and illegal.

Recommendations

As the data show, mass legal and illegal immigration are closely tied. The
following recommendations would help remedy the problems that presently derive
from legal and illegal immigration being two sides of the same coin.

Reduce legal immigration.
If illegal immigration is to be curbed or stopped, then legal immigration must
decrease. The volume of aliens enticed to immigrate, under the law or against
the law, is too great. The system is too open-ended, creating countless
opportunities for fraud and abuse.

Overall legal immigration quotas should be halved, at
least. The statutory capitation is supposed to be about 700,000; about 300,000
a year more closely resembles America's historical average.

About 200,000 to 300,000 immigrants a year must be set
with a "hard" cap; no one should be exempt from the cap. The maximum level
should include refugees and asylees, as well as immigrants and their nuclear
family members. Every fifth year should be a sabbatical year, in which no new
immigrant visas are accepted or processed. Rather, the State Department and the
Department of Homeland Security should use this respite to ensure immigrant
accountability and to ferret out fraud and abuse.

Set better immigrant priorities.
Building upon the recommendations of the Jordan Commission, extended family
immigrant visa categories should be eliminated: U.S. citizens' adult children,
married or unmarried; U.S. citizens' adult brothers and sisters; and grown
children of lawful permanent residents. The visa lottery should go, too, an
action taken by a large bipartisan majority of the U.S. House of Representatives
in December 2005 when it passed an amendment by Rep. Robert Goodlatte to H.R.
4437 (See also Rep. Goodlatte's H.R. 1219.).

Moreover, a new immigrant priority selection system
should emphasize an individual's qualifications.48
The needs of the U.S. economy should have foremost priority for immigrant
selection. Further, in order to qualify for an immigrant visa, an individual
should have to merit a certain number of points under a modified point system.
A would-be immigrant (except for minor children), in order to gain points, must
have attained no less than a high school education (with higher education
winning him more points), be proficient in the English language, be literate,
possess demonstrable, verifiable in-demand job skills or superior talent, and
have at least some minimum amount of financial assets satisfactory to ensure
self-support.

Before any immigrant visa is issued, an immigrant or
sponsor should have to show proof of purchase for the immigrant of generous
health insurance, an adequate amount of disability and life insurance, and
automobile insurance, if he owns a vehicle or expects to drive. The only family
reunification considerations should be rejoining husband and wife, and parents
with their minor children.

Ensure allegiance to America. To ensure that
an immigrant has the right motives in seeking to immigrate, that his intent is
to leave his native land, culture, and extended family behind once and for all,
and to become an American (that is, to live up to the American ideal of
immigration), the egregious Supreme Court ruling that allowed dual citizenship
and dual nationality should be overturned, by constitutional amendment if
necessary.49Dual citizenship and dual nationality
provide foreigners a vested interest in two nations. Such split loyalties to
sovereign nations is unfair to each nation and to fellow citizens. Dual
citizenship grants immigrants an unfair, privileged status not available to
native-born Americans. It undermines one's ability to fully commit to his new
homeland. It devalues the naturalization oath, in which one's words swear full
allegiance to the United States.

Reduce unrealistic expectations.
Higher standards for and more realistic expectations among potential immigrants
would reduce the problems associated with technical eligibility for an immigrant
visa based solely on a distant relation. This could be advanced in a number of
ways.

Parents of naturalized immigrants should not be
eligible for an immigrant visa. Rather, elderly parents should be limited to
renewable nonimmigrant visas of moderate duration, as in Rep. Tom Tancredo's
H.R. 3700. Parents' sponsors should be required to prove income of at least the
median U.S. income for a household the size of the sponsor's, including the
prospective long-term visitor parents.

In addition, the sponsor must prove that he has
secured a generous health care insurance policy for the parent or parents he
seeks to bring to the United States, paid in full for the duration of the
initial visa term. Parents' nonimmigrant visa renewal should require proof that
the sponsor and the parents have abided by the terms of binding affidavits of
support and visas, respectively, and that health insurance is prepaid in full
for the next visa term.

Similarly, the spouses and minor children of LPRs
could gain admission into the country as nonimmigrants and at the full expense
and on the full responsibility of the sponsoring immigrant (similar to the
approach in H.R. 3700). This should include health and other insurance, as well
as median or higher household income. Immediate family members of LPRs could
qualify for immigrant visas once the sponsor naturalizes.

The law should specify that spouse only means
heterosexual husband and wife, not homosexual couples married or otherwise or
other cohabitating combinations.

Insofar as family reunification remains a priority in
U.S. immigration policy, the nuclear family of an immigrant who himself
possesses skills, education, and English proficiency should be the extent of
it. That is, a decision to immigrate to the United States should bear the full
expectation that the immigrant is making a fundamental break from his homeland,
extended family, and native culture. And it should only provide for the unity
of husband, wife, and minor children.

The only hope or expectation of reunifying with
relatives beyond their own nuclear family units should be to return to them.
"Family reunification," especially of entire family trees, should not imply a
single direction toward the United States.

When an adult leaves his native land to emigrate to
America, he or she makes a decision to be
separated from brothers or sisters, parents, and adult children. We realize
that this is a difficult decision in many cases, but ultimately, it is a
decision that the immigrant has made.50
(emphasis added)

Ensure nonimmigrant compliance and return.
Nonimmigrants should be required to maintain stronger ties to their home
country. Except for those here for longer terms, such as citizens' parents and
LPRs' immediate family as outlined above, nonimmigrants must understand that
their visit to the United States is intentionally temporary, and that their
admission is based on strict terms and conditions.

Noncompliance with temporary visa terms should be
dealt with severely. Overstaying an expired visa should carry criminal
penalties. The law should treat visa overstayers the same as those who sneak
across the border. With up to half of illegal immigration attributable to visa
overstays, no defensible distinction can any longer be made between these two
circumstances of illegality. Too much willful lawbreaking takes place, with
temporary visas simply a means to permanent immigration -- and being an
intending immigrant is reason to deny someone a visa.

Most nonimmigrants (such as students, H-1B workers,
L-1 intracompany transfers, etc.) should not be accompanied by dependents. Half
a nonimmigrant's time should be spent in the home country, and visa terms should
be no longer than one year. For instance, if a work visa allows six months in
the United States, the next six months should be in the home country. Time in
the United States on a typical nonimmigrant visa should be matched by an equal
period out of the country.

Nor should nonimmigrants be allowed to adjust status
to another nonimmigrant category or to immigrant within the United States.
Adjustment of status should become something that only takes place abroad, and
only following rigorous investigation and complete assurance that previous visa
terms have been honored and that all requirements for the new visa are met.

"Birthright citizenship" should be eliminated.51
This would remove one more means of fraud and abuse from our immigration
system. Ending the ability of illegal aliens or nonimmigrants to birth an
automatic U.S. citizen baby here would take away an important means of gaming
the system.

Enlist foreign governments' cooperation.
Immigration to the United States by a foreign nation's citizens may benefit that
government, principally by monetary remittances. Some foreign governments, most
notably Mexico, foster illegal immigration to unlawfully maximize those
benefits. Such governments should be forced to curb illegal immigration.

Adopting a policy such as Rep. David Weldon's Truth in
Immigration, or TRIM, Act (H.R. 4317) would effect such an incentive. This
legislation would require an annual estimate of the illegal alien population
using Census Bureau data, by nation of origin, and restrict a sending nation's
legal immigration by a corresponding level. In combination with the recommended
reductions in legal immigration, this approach would give foreign countries such
as Mexico a huge incentive to keep their nationals from breaking America's
immigration laws.

Other foreign policy tools, from foreign aid to trade
agreements, should be conditioned on how thoroughly a foreign government
cooperates in U.S. immigration enforcement and repatriation and, importantly,
how well it produces real results in cutting illegal immigration from that
nation.

Go slow on any guestworker plans.
The global economy has become more integrated, and more corporations are
adopting business models that involve international labor flows. Yet, such
private interests should hardly be allowed to dictate public policy. While a
new guestworker program may be conceivable in principle, it represents a tenuous
course with respect to its immigration and other consequences. Foremost,
policymakers must keep in mind (and remind their corporate constituents) that
America is much more than a market; she is a nation, a society, a body politic.

The experience of guestworker programs, in the United
States and elsewhere, has been fraught with unintended consequences. In many
cases, such programs have resulted in permanent residents (legal and illegal),
not guests at all. The economic consequences have proven detrimental to the
most vulnerable native-born workers. The social consequences have proven
harmful, even dangerous, as with insurgent radical Islam in the United States,
Great Britain, France, and other parts of the West in recent times.

The risks of a massive new guestworker program should
be fully considered before moving forward. The risks from hundreds of thousands
more foreigners being processed for temporary visas by an already inept,
outmanned, fraud-ridden immigration bureaucracy in the Departments of State and
Homeland Security is folly. This bureaucracy could never handle the added
workload. At a minimum, legal immigration levels, both permanent and temporary,
should be scaled back by many more than the new program would admit for entry
each year.

Enforce the law.
Faithful enforcement of all our immigration laws must be fully achieved. This
certainly must happen and be in place for several years before any guestworker
program goes into effect. That is, every alien's background must be checked,
every alien's eligibility for the immigration or other benefits for which he is
applying must be confirmed before benefits are accorded, every case of suspected
fraud (immigration fraud, benefits fraud, welfare fraud, marriage fraud,
document fraud, identity fraud) involving an alien must be vigorously and
routinely investigated, absconders, visa overstayers, and failed applicants must
face the real likelihood of capture and prosecution, all this and more must
become the norm. This is necessary, with or without a new guestworker program.

Illegal aliens should expect punishment, not reward,
for lawbreaking; thus, steadily increasing the level of immigration enforcement
to the point of routinization, as the 9/11 Commission recommended, is necessary
and desirable. Since most illegal aliens present little national security risk,
allowing their continued presence amidst continually building pressure and
increasing likelihood of being caught will effect a gradual decrease of the
illegal alien population by attrition, with little danger. The most promising
solution for reducing the number of illegal aliens with the least impact on the
economy -- attrition -- is the routine enforcement of all immigration laws.

Also, the law should make plain that immigration
offenses relating to illegal presence (e.g., entry without inspection, visa
overstay) constitute continuing offenses.

No more amnesties.
America's experience with amnesties has shown that they only make things worse.
Amnesties beget more illegal immigration. Even politicians' proposals of
legalization prompt more illegal immigration. The only conceivable type of
amnesty that could remotely be justified is a limited "exit amnesty." This
would let illegal aliens leave the country, once and for all, without paying the
full penalty due for their lawlessness (i.e., face criminal prosecution for
immigration violations).

Conclusion

The data show that while legal immigration in the United States has increased
since 1965 at an exorbitant rate, illegal immigration has risen right alongside
it. Further, the actual levels of illegal immigration are masked by a series of
amnesties -- the largest and most notorious one enacted in 1986 -- and the
documented experience of many immigrants who fail to abide by the law and come
to the United States unlawfully before their turn for a green card arrives, but
whose ultimate legalization shows up on the legal immigration ledger.

Another compelling fact is that nations that send
large numbers of immigrants to America tend also to send sizeable shares of the
illegal alien population. Mexico is the most prominent example of this
phenomenon. However, other Western Hemisphere countries number among the
largest sources of both legal and illegal immigration.

Eastern Hemisphere nations that account for high
levels of legal immigration -- China, the Philippines, India, Korea -- also are
responsible for much of America's illegal immigration problem. Vietnam appears
to be an exception, despite a post-Vietnam War spike in Vietnamese admissions.

Because of the inextricable link between legal and
illegal immigration, there is no way to continue massive legal immigration and
reduce illegal immigration. To cut illegal immigration, legal immigration must
be curtailed. To assert otherwise attempts to maintain a fiction that is
unsustainable, judging from fact and
experience.

End Notes

1
See James G. Gimpel and James R. Edwards, Jr., The Congressional Politics of
Immigration Reform, Boston: Allyn & Bacon, 1999, pp. 1-4, for a sense of
this sentiment.

5
James R. Edwards, Jr., testimony at a hearing of the U.S. House Judiciary
Committee, Subcommittee on Immigration and Claims, March 25, 1999, on "The
Benefits to the U.S. Economy of a More Highly Skilled Immigrant Flow." http://judiciary.house.gov/legacy/106-edwa.htm

6
The parents visa category serves to bring aged parents of adult immigrants; this
category does not serve the reunification of minor children with parents on whom
they are dependent.

20
A Congressional Research Service report from 1977 indicates that INS estimates
of the illegal alien population in the mid-1970s ranged from 1 million to 12
million. CRS cites a Cabinet-level task force, which concluded that "hard data
on illegal aliens is virtually non-existent." Many citations of the mid-20th
century decades seemed to extrapolate from the number of deportable aliens
apprehended. See Joyce Vialet, "Illegal Aliens: Analysis and Background,"
(77-47 ED), Congressional Research Service, February 16, 1977.

22
See INS "Estimates of the Unauthorized Immigrant Population Residing in the
United States: 1990 to 2000," pp. 9-10; and Douglas S. Massey and Nolan Malone,
"Pathways to Legal Immigration," Population Research and Policy Review,
Vol. 21, No. 6, December 2002, which analyzed the initial New Immigrant Survey.
Available at
http://nis.princeton.edu/papers/pathways.pdf

42
INS "Estimates of the Unauthorized Immigrant Population Residing in the United
States: 1990 to 2000," p. 10. However, a portion of this increased U.S.-based
adjustment of status in this period occurred under the controversial Section
245(i) policy, which INS favored because it generated revenue for the agency;
politicians liked it because the process was effectively a form of amnesty they
could give.

43
Gimpel and Edwards, p. 81. Also, see the 1998 INS Statistical Yearbook, which
estimated overstays at 41 percent of the illegal alien population. INS
estimated that overstays accounted for 33 percent of illegal aliens in 2000, as
stated in the 1990 to 2000 INS estimates.

49
See John Fonte, "Dual Allegiance: A Challenge to Immigration Reform and
Patriotic Assimilation," Center for Immigration Studies Backgrounder,
November 2005 http://www.cis.org/articles/2005/back1205.html;
Stanley Renshon, Reforming Dual Citizenship in the United States: Integrating
Immigrants into the American National Community, Center for Immigration
Studies Paper, October 2005.http://www.cis.org/articles/2005/dualcitizenship.html

51
See John C. Eastman, testimony at a hearing of the U.S. House Judiciary
Committee, Subcommittee on Immigration, Border Security, and Claims, September
29, 2005, on "Dual Citizenship, Birthright Citizenship, and the Meaning of
Sovereignty" (http://judiciary.house.gov/media/pdfs/printers/109th/23690.pdf)
and Charles Wood, "osing Control of America's Future -- The Census, Birthright
Citizenship, and Illegal Aliens," Harvard Journal of Law and Public Policy,
Vol. 22, No. 2, Spring 1999, pp. 465-522.

About The Author

James R. Edwards, Jr. is an
adjunct fellow with the Hudson Institute, co-author of The Congressional
Politics of Immigration Reform, and contributor to several published volumes
concerning immigration issues. His writings have appeared in The New York
Times, The Washington Times, Human Events, and other publications.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.